Alternative vote

Conservative Home has published a thorough blog post dealing with points arising out of the No2AV case.

Part of it deals why some of the more extravagant claims in favour for AV don’t stack up. I can accept some of that. AV appears to me to be an improvement on FPTP in terms of fairness and representation but I am under no illusion that it is going to usher in a new era of perfect democracy.

It’s the bits about why AV is actually a step in the wrong direction and should be resisted with which I struggle. First, the idea that the 50% threshold is arbitrary. I have already written below about what happens if 50% of the original number of voters is not achieved, because of the way in which preferences are expressed (or not expressed) as voters get further down their order of preference. But I would not accept that 50% is wholly arbitrary as an aspiration. I can entirely see the sense in a principle that, ideally, a candidate should not be returned who more people voted “against” than voted for.

Actually, the threshold ought to be 50% plus 1 vote, to remove a potential unfairness that the second preferences of voters who preferred a candidate who was still in the running going into the final count (i.e. the count after which a candidate will be returned), but does not win, could, if taken into account, have swayed the result in favour of a candidate other than the one who did win. With a threshold of less than an absolute majority, fairness might be said to require a post-final round count, to see whether the second preferences of all the candidates who did not win would have changed the result if added together. This issue is avoided at 50% plus one vote and there is no need to go any further to 65%, or whatever.

Second, the idea that it is not fair that one person’s 6th preference “counts for the same” as another person’s 1st preference. I disagree. As I understand it, the idea behind AV is to enable voters for whom a popular candidate would not have been their ideal choice nevertheless to participate in the selection of which popular candidate will be returned to represent them. With that in mind, it would be giving greater weight to 1st preference votes that would actually be unfair. This would be to favour for no good reason the preferences of the “mainstream” – whose views are middle-of-the-road enough to lead them to support in the first place a popular candidate who has gathered enough votes to remain in the running – when it comes to selecting which candidate should go forward to represent the constituency as a whole.

So what AV seeks to achieve is to allow non-mainstream voters better participation in the process of selecting a mainstream candidate to represent them, while also freeing them to express their absolute preferences to start with, rather than engaging in tactical voting. You can argue about whether that aim is more democratic, or desirable, but I disagree with Conservative Home’s suggestion that only in a “benighted worldview can that possibly be described as ‘fair’”, on the oversimplistic (and incorrect) basis that it involves things that are intrinsically of different values being counted as being worth the same.

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Don’t believe the hype

There has been some excitement in the news and on blogs recently about so-called “hyper injunctions”.

These are a development of a type of court order requiring the injuncted information to be kept secret – colloquially, the “gagging order”.

The so-called “super-injunction” adds the gloss that details about the existence of the injunction itself cannot be revealed either. The idea behind this is to deal with cases where merely reporting that an injunction had been obtained to stop people talking about something that Mr X had done would result in the damage that Mr X was arguing he had a legitimate interest in preventing being caused.

The so-called “hyper-injunction” adds the further specific gloss that the injuncted information cannot even be revealed to an MP.

Cue lots of hyperbole about secret courts and the Magna Carta.

But is the idea of a hyper-injunction really all that objectionable in an appropriate case? It seems to me that if there is a legitimate reason for a temporary gagging injunction to be imposed, it is undesirable if the person principally subject to the gag can just lobby an MP to stand up and mention it in Parliament, thereby getting around the injunction with impunity (due to the doctrine of Parliamentary privilege, which means that anything can be discussed in Parliament and the fact that proceedings in Parliament can be freely reported*). This is presumably what the court had in mind in imposing the additional specific restriction on talking to MPs.

Rather, the real concern would be gagging orders – whether super or hyper or whatever – being imposed for too long a time period or being imposed in inappropriate cases or for inappropriate reasons.

*Edit 23/05/11: The law on this is not as clear as I had thought when I first drafted this. While reporting proceedings in Parliament would be a defence to a defamation claim, Lord Neuberger’s report on super injunctions states that it is not clear that reporting such proceedings is a defence to an action for contempt of court – (see paragraph 6.33). Nevertheless, when John Hemming MP today named in Parliament the footballer who is said to have obtained an injunction relating to his affair with Imogen Thomas, which restrained him from being named, a number of English newspapers appear to have taken Mr Hemming MP’s remarks as their cue immediately to publish his name and photograph on their websites.

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Ticket touts

I heard Lord Coe, Chairman of the London 2012 Olympic organising committee, on the BBC Radio 4 Today programme this morning. He was talking about how there is going to be a crackdown on people seeking to resell 2012 Olympic tickets, which he described as a criminal offence.

I wondered what made it a criminal offence.

The answer appears to be section 31 of the London Olympic Games and Paralympic Games Act 2006. The key provision is as follows:

(1)A person commits an offence if he sells an Olympic ticket—

(a) in a public place or in the course of a business, and

(b) otherwise than in accordance with a written authorisation issued by the London Organising Committee.

(2) For the purposes of subsection (1)—

(a) “Olympic ticket” means anything which is or purports to be a ticket for one or more London Olympic events,

(b) a reference to selling a ticket includes a reference to—

(i) offering to sell a ticket,

(ii) exposing a ticket for sale,

(iii) advertising that a ticket is available for purchase, and

(iv) giving, or offering to give, a ticket to a person who pays or agrees to pay for some other goods or services, and

(c) a person shall (without prejudice to the generality of subsection (1)(a)) be treated as acting in the course of a business if he does anything as a result of which he makes a profit or aims to make a profit”.

The maximum penalty is a £20,000 fine.

The legislation is based on section 166 of the Criminal Justice and Public Order Act 1994, which made it a criminal offence for an unauthorised person to resell tickets for designated football matches (i.e. Football League; Premier League; European (UEFA); and international matches played at major grounds).

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Alternative Vote

I have been trying to get up to speed with what ‘AV’ is in order to consider how I would vote in the May 2011 referendum regarding whether we should change the way in which Members of Parliament are elected in the UK.

The current system, described as ‘first past the post’, is simple. The country is split into constituencies each of which has the right to return one Member to Parliament. All valid votes in the constituency are counted and the candidate with the most votes is returned.

A perceived problem with this system is that where there are many candidates contesting a seat, it is possible for a candidate to be returned who enjoys the support of significantly fewer than half of those voting in the constituency. Given that only a certain percentage of eligible voters even turn out to vote in a given election, the candidate’s support among eligible voters will be even less. So the constituency’s ‘representative’ in Parliament may only be supported by, say, under 30% of eligible voters and actively opposed by more than half.

As I understand it from a few google searches, the point of AV appears to be that in order to win, a candidate ought to be supported, to some extent at least, by an overall majority of those voting in the election. To seek to achieve this, the AV vote comprises a synthetic series of run-off elections.

A run-off election is where if no candidate has an overall majority, the candidate with the fewest votes is ‘knocked out’ and another round of voting takes place. This process is repeated until someone does get an overall majority.

The idea is that the candidate eventually returned must at least have appealed to the voters enough such that more than half of them have been prepared to express a preference for him or her as the ‘best of a bad lot’ in circumstances where the candidate that they really wanted has been cut for lack of support.

With AV, rather than actually having multiple rounds, the run-offs are compressed into one ballot paper, on which voters rank candidates in order of preference. The list of preferences enables it to be ascertained on a count (which is therefore more complicated than a ‘first past the post count’) who voters would have voted for next, once a more preferred candidate was ‘knocked out’.

What I am not yet clear about is what happens in AV if no-one gets to 50% of voters after all other preferences have been taken into account. This scenario could arise if everyone voted for a preferred minority candidate, followed by one of the main parties of Liberal Democrats, Conservatives or Labour as a second preference, but could not stomach putting either of the other two main parties as a preference on any basis.

So in the penultimate round, all of the small parties have dropped out and you might end up with 35% Labour, 33% Conservatives and 32% LibDems. The LibDem is accordingly eliminated as the weakest candidate, but there are no further preferences to assign to Labour or Conservatives.

I would have thought that there are two options:

1. Declare the vote void and start again.

2. Calculate the 50% out of the number of positive votes in the final round, rather than out of number of voters who filled out a ballot paper in the first place. Accordingly, on the above example, Labour win, with their 35% of the total original voters amounting to 51.5% of the positive voters counted in the final round.

Option 1. would seem to be highly inconvenient. However, assuming that 2. were to be what happens, that would appear to remove the legitimacy intended to be conferred by being able to say that the returned candidate was supported by at least 50% of those who troubled to vote in the election. We would be back to the same problem said to exist with the ‘first past the post’ system.

Posted in UK politics | 3 Comments

Votes for prisoners

Having been following this issue in the news and having read some interesting comments about it on Twitter recently, I thought that I would have a think in more detail about what my position is on the issue of the right of prisoners to vote.

First, the constitutional side. On Twitter, @benjaminfgray suggested that there may be an ironic tension between, on the one hand, MPs saying that lawbreakers should not have the right to vote and, on the other hand, themselves voting “to break the law” (i.e. by having the UK defy a ruling of the European Court of Human Rights). @DavidAllenGreen expressed disappointment that “so many seem to fall” for the doctrine of sovereignty of parliament, which he variously described as a “Victorian myth”, “a common law doctrine of statutory construction” and “crap”. @benjaminfgray described parliamentary sovereignty as “a judicial doctrine” and suggested that it was “a bit silly to try and play it as a trump card over a court”.

The implication appeared to be that MPs were constitutionally obliged to vote to change English law in order to comply with the ruling of the European Court of Human Rights. I disagree. My understanding of parliamentary sovereignty is that it means simply that the ultimate law-making authority in this country is the body comprising the elected representatives of the people of this country. Governments propose law and courts interpret and apply law but parliament has primacy. There is no higher law in this country than the law made by parliament. Accordingly, parliament can vote to ignore international law (whatever that amounts to), European law and the European Convention on Human Rights, although doing so will have consequences. I believe that – while we remain any kind of sovereign state – this is entirely right and proper. While various international obligations may have been entered into and power may in various areas have been ceded to other authorities (most obviously Europe and NATO) our destiny remains in our own hands and MPs can always vote to take power back (even though in some cases it may now seem more or less unthinkable that they would ever actually do so).

Accordingly, it is obvious from the above that – unlike some – I would accord considerable significance to the doctrine of parliamentary sovereignty. In my view, there is no tension between MPs considering that lawbreakers should not have the right to vote and themselves deciding to vote for a motion expressing support for English law that does not comply with a decision European Court of Human Rights. Nor is it silly to invoke the doctrine of parliamentary sovereignty “against a court”. Its ability to be so invoked is fundamental to what I understand it to mean.

An underlying question here is the extent to which a democratically elected body is capable of making laws restricting participation in democracy. I would suggest that in this country, it obviously is. Historically, the franchise here has of course been more limited than it is now. Unless and until we were to have a genuine constitution of fundamental rights prohibiting restrictions on universal suffrage and a Supreme Court that is constitutionally above parliament to implement it, parliament can decide to allow limitations on the right to vote to continue to exist. I do not believe that we are there yet. The European Convention does not amount to such a constitution nor the European Court of Human Rights to such a court.

So, in my view, parliamentary sovereignty was key to the constitutional basis for MPs voting as they did this week (effectively expressing an intention in support of maintaining the status quo in relation to prisoner votes notwithstanding the decision of the European Court), in the sense that it means that they are not obliged blindly to implement decisions of the European Court. Whether they would be right not to do so is another question. The European Convention on Human Rights and our European obligations are important and should not be breached lightly. The argument appears to be that where someone has chosen to defy the laws made by parliament in a sufficiently serious way to be sent to prison for it, he or she should be deprived from participation in the democratic process that ultimately leads to the making of laws for the duration of his or her sentence. People will have different views as to whether that principle is even correct and upon how far the UK ought to go in order to defend that principle in defiance of the European Court of Human Rights, depending upon how fundamental they consider that principle to be. Parliament as currently constituted seems to think that it is both right and important. I suspect that a significant majority of the general public would agree with them.

Constitutional issues aside, I also had a couple of thoughts on the specifics. First, in relation to the question that has been debated as to whether a threshold based upon sentence length could be imposed as a solution to satisfy the European Court short of allowing all prisoners to vote. I fail to see how that would be any less objectionable in principle than a blanket loss of the right to vote (which effectively is just a threshold set at 1 day). If the principle is that prisoners should not be deprived while in prison of voting to influence the composition of a parliament if that parliament will still be in place once they have been released (and I am not even sure that this is generally accepted as the principle, although it might seem to make sense), a case-by-case test would have to be imposed based upon both length of sentence and the point in the electoral cycle. This would of course be difficult to administer and would be easily confounded by various factors, for example early release and the unpredictability under our system of the timings of dissolutions of parliament.

Second, I fail to see why any special exception to an otherwise blanket loss of the right to vote should be made in relation to contempt of court, which is the current position in this country. Contempt – i.e. defiance of the legal system by refusing to comply with a court order – would seem to involve, more specifically than many crimes, a deliberate rejection of part of the fundamental mechanism of civil society. So on the contrary, if it could be said that there are special cases, over and above any breach of the law in general that is serious enough to warrant a custodial sentence, where suspension of the right to participate in civil society via the vote is particularly appropriate, I would have thought that contempt of court is probably one of them.

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Schrödinger’s cat and the conditional fee arrangement

It has been reported this week that in MGN Ltd v UK the European Court of Human Rights has held that a large percentage uplift of legal costs by way of success fee, payable by the losing party in a privacy case, is an unjustifiable restriction of freedom of expression and therefore contrary to Article 10 of the European Convention on Human Rights. Commentators have suggested that as a result, the UK may be on the hook to reimburse sums paid out by losing parties to cover success fees in defamation and privacy claims.

However, that would be an interesting outcome, for the following reason. Deciding a case and thereby testing whether or not a success fee arises for payment would seem to be a demonstration that freedom of expression was not affected by the success fee in that particular case. Despite the success fee, the losing party will by definition nevertheless have gone ahead to say whatever it was that gave rise to the claim, standing by it to trial. What is more, a court will have found that whatever was said was something that the losing party becoming liable for the success fee was not legally entitled to say. So in that situation, far from being an unjustified obstacle to freedom of expression, the success fee will amount to something that failed to discourage a party from saying and standing by something that it actually should not have said at all (I do not consider for present purposes the current English law prohibitions on what can legally be said, which is another issue).

Instead, it is the inchoate possibility of a success fee in an untested case that is the potential bar to freedom of expression, when it has discouraged a party whose speech would not have been defamatory or otherwise unlawful from speaking for fear of an expensive legal action. Accordingly, it is not really losing parties liable for success fees in concluded actions whom the UK should compensate, but those who have wanted to say something but did not or who said something but recanted in the face of legal threats.

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Could Wikileaks have an inducing breach of contract claim?

I don’t normally write about law stuff on here (indeed, lately, I don’t write about much at all!), but a question raised on Twitter today by @CharonQC moved me to give some thought to the question of whether governmental pressure (via officials) on payment service providers, such as Paypal, not to provide services to Wikileaks could amount to the tort of inducement to breach of contract.

I should note at the outset, of course, that none of what follows is intended to be legal advice to be relied upon. Also, please note that it (like everything on this blog and on my twitter feed) is written in my personal capacity and not on behalf of (or in any way endorsed by) my employer. This is just for fun.

In English law, this tort – one of the “economic torts” as they are known – is the legal wrong where a party knowingly induces another party to breach its contractual obligations to a third party. I have some familiarity with it, having been present in court (although not acting for any party) when the most important recent decision in relation to it, Mainstream Properties v Young [2007] 2 WLR 920 in the House of Lords (more famous with the general public for the case that was heard together with it, Douglas v Hello) was being argued by Gordon Pollock QC for the respondent (it transpired successfully). In my own professional practice, I have also worked on a case in the last couple of years acting for a defendant in successfully resisting an interlocutory injunction brought upon the basis of the tort.

In the Wikileaks case, there is no real information as to what, if any, inducements by government officials might actually have taken place to enable any very firm conclusions to be drawn. Also, it may well be that any action, if brought, would be brought in the US, or elsewhere, under a law other than English law (although I suspect that other Common Law jurisdictions may impose similar hurdles to those discussed below). However, one can say that under English law, the tort is not an easy one to make out. It strikes me that there would be potential problems in this case (given the facts as I currently understand them to be) with several of the elements that would be necessary before liability would arise. The elements are as follows:

  1. An actual or threatened breach of contract.

    This is a tort of secondary liability, in that there can be no inducement of a breach unless what is induced does (if it has already happened) or would (if it is yet to happen) amount to a breach.

    Accordingly, in this case, if the payment service providers’ actions do not amount to a breach of contract, there could be no tort either. Whether or not there has been (or will be) an underlying breach will depend upon the terms of the contracts between Wikileaks and the payment service providers, but no doubt the latter would strongly resist liability.

  2. An inducement or procurement.

    The party must have done something to induce or procure the breach. In this case, we don’t know what, if anything, has been done by any government to encourage payment service providers not to provide services to Wikileaks. Mere expressions of governmental disapproval of Wikileaks are unlikely to be sufficient here.

    There is a distinction to be made here between procurement and prevention. Where a party joins with the contracting party to induce the breach – for example by persuasion, pressure or entry into of conflicting contractual obligations – the inducing party may be liable as an accessory if the other elements for liability are made out. The inducing party does not need to have done anything that would be unlawful in its own right in order for liability to arise.

    Where a party does not join with the contracting party, but simply acts to prevent it complying with its contractual obligations, there can be no question of accessory liability. The liability must therefore be stand-alone, in that no tort is committed unless the preventative means used were independently unlawful.

    Interestingly, therefore, if a government were to go so far as to make it illegal to provide services to Wikileaks, for example by placing Wikileaks on a “banned list” of organisations (as the news reports suggest has at least has been raised in the US as a possibility) this could not then amount to an inducement to breach of contract (provided that the government was validly exercising a lawfully conferred power). In such circumstances there may also be an issue of Crown immunity to consider (i.e. that the government cannot be sued in tort for exercising a prerogative power or a power conferred upon it by statute).

  3. Knowledge.

    The party must know that what is being induced is a breach of contract. It is not enough merely that the act induced is, as a matter of law or construction of the contract, a breach. The inducing party must actually realise that it will have this effect. Nor does it matter that the inducing party ought reasonably to have realised this – the test is subjective.

    Given that it is not clear that what the payment service providers have done actually amounts to a breach of their own obligations, this seems to be another area where a claim in this case could fall down. For example, if a government had simply said “we would like you to stop working with Wikileaks”, without considering whether this would involve payment service providers in a breach of their obligations, no tort would have been committed.

  4. Intention.

    The party must intend to procure the breach. If the breach is neither an end in itself or a means to an end, but merely a foreseeable consequence of the inducing party’s actions, then the court has held that it cannot for this purpose be said to have been intended.

    There is overlap here with inducement and knowledge. In this case, if it were to be made out that an inducement had taken place, in the knowledge that it would involve a breach, it would seem difficult to conclude that such breach was not at least a means to an end.

  5. Damage.

    The claimant must have suffered, or show that it is reasonably in fear of suffering, financial loss. This will essentially be an evidential issue, which I would have thought could successfully be overcome in this case

In conclusion, this is of course hypothetical and no very firm views can be reached absent the details of any inducements that may or may not actually have taken place. However, this tort can be quite a difficult one to establish and, on present information, I personally would not expect to see a claim being brought (under English law or other laws like it, at least). I gather that @CharonQC is researching the US law position, however, and I await his conclusions with interest.

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Tuition fees

Does Nick Clegg think that students are completely stupid (and the poorer the students, the stupider they are)?

In summary, the latest suggestion from Mr Clegg appears to be that students shouldn’t protest too much about the rise in tuition fees, because this will put poor students off going to university. This will supposedly occur because such students will believe that the fees of potentially up to £9,000 a year, against which the protests are targeted, will have to be paid up-front – something that they will not be able to afford.

First, 9 grand a year up-front plus living expenses would be pretty difficult for anyone but the top few percent of households to afford, never mind just the poorest.

But more importantly, does Mr. Clegg really think that students wouldn’t, like, just look into how their university education was going to have to be funded, or that no-one at school would tell them? Instead, they’d just think “there were protests about this, must be too expensive”, stick their fingers in their ears, cover their eyes, and not go to university.

Nice try Mr. Clegg, but it is not going to wash. You are simply not going to be able to talk your way out of this one. You said on during the election that you wouldn’t support a rise in tuition fees and now, having been elected, you are supporting it. If you are not going to volte face once more and go back to opposing it, you might as well just shut up about it and let the tories speak to the increases that are going to be rammed through, because the more that you talk about this issue, the worse you look.

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Another DVD from LoveFilm: Disney/Pixar’s ‘Up’.

An extremely well made and touching film. Explores some pretty heavy themes – ageing, loss of loved ones, thwarted dreams – with courage and wit. Cartoons these days are often more powerful, better movies than a lot of live action.

I’d recommend this.

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Two recent DVDs from LoveFilm: – Alice in Wonderland and Avatar. Hadn’t previously been aware that both were apparently 3D in the cinema (knew that Avatar had been). Both were viewed on my TV in non-3D form.

Quite enjoyed Avatar, despite missing out on the 3D that was the big USP when it came out.

Didn’t really like Alice in Wonderland. Great cast, but not a great script. Maybe the 3D effects would have saved it.

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